Aneesh vs Manjeri Municipality
2022 Latest Caselaw 9705 Ker

W.P.(C) No.18001/2016                    1




                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                      THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

               FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944

                              WP(C) NO. 18001 OF 2016

PETITIONER:

               ANEESH
               S/O. ABDULLA, POOZHIKKUTH HOUSE,MANJERI P.O.-676 121, MALAPPURAM
               DISTRICT.
               BY SRI.ANEESH(Party-In-Person)


RESPONDENTS:

     1         MANJERI MUNICIPALITY
               REPRESENTED BY ITS SECRETARY, MANJERI P.O.-676 121, MALAPPURAM
               DISTRICT.
     2         THE SECRETARY
               MANJERI MUNICIPALITY, MANJERI P.O., MALAPPURAM DISTRICT-676 121.
               BY ADV SRI.K.SHIBILI NAHA, STANDING COUNSEL
               SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER FOR R1 & R2


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

   26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.18001/2016                          2




                                             JUDGMENT

Dated this the 26th day of August, 2022

This writ petition is filed by the petitioner seeking the following reliefs:

(i) a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Exhibit P3 and quash the same

ii) a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to approve the building plan submitted by the petitioner and grant the building permit as applied for. Iii) such other reliefs as this Hon'ble Court deems fit to grant in the nature of this case.

2. When the matter came up for hearing before this Court on 24.8.2022,

learned counsel for the petitioner Sri.P.Samsudin, submitted that vakalath has

already been relinquished and the files are returned. Therefore, the Registry was

directed to show the name of the petitioner in the cause list and posted today. The

name of the petitioner is shown in the cause tile, however, none appears for the

petitioner.

3. Taking into account the reliefs sought for by the petitioner, it is only

appropriate that the writ petition is disposed of with appropriate directions since

the writ petition is pending before this Court for the past 6 years without securing

any interim orders.

4. The basic facts for the disposal of the writ petition are as follows: petitioner

owns 3 Ares and 71 Sq.mtrs.of land comprised in Survey No.242/4 of Narukara

Village, Ernad Taluk, within the limits of the Manjeri Municipality. Application for

building permit is refused by the Secretary of the Municipality as per Exhibit P3

proceedings for the reason that the land comes under the residential zone in the

DTP Scheme, where road widening is expected to be done.

5. The paramount contention advanced by the petitioner is that since the

DTP Scheme is an old and obsolete one by virtue of the judgment of the Supreme

Court in Raju S. Jethmalani and others v. State of Maharashtra and others

[(2005) 11 SCC 2221], the petitioner is entitled to get permit for construction of

the building irrespective of the scheme.

6. This writ petition was pending before this Court from 23.5.2016. However

, the Kerala Town & Country Planning Act, 2016, hereinafter called, "Act, 2016",

has come into force on and w.e.f. 17.3.2016. The Act, 2016 has got its own

features so as to tackle each and every situation including a property situated in

the master plan and the scheme covered area .

7. The grievance of the petitioner is that the application is rejected on the

ground that the property of the petitioner is required for widening of a road passing

adjacent to the property of the petitioner. The said issue is in fact guided by

section 67 of the Act, 2016.

8. In that view of the matter, and perusing the pleadings & material on

record and hearing learned Senior Government Pleader Sri.Joby Joseph, I am of the

considered opinion that the writ petition can be disposed of with appropriate

directions. Section 67 of Act, 2016 reads thus:

"67. Obligation to acquire land in certain cases.--(1) Where any land is designated for compulsory acquisition in a Master Plan or Detailed Town Planning Scheme sanctioned under this Act and no acquisition proceedings are initiated for such land under the Land Acquisition Act in force in the State within a period of two years from the date of coming into operation of the Plan, the owner or person affected may serve on the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned, within such time and in such manner, as may be prescribed, a notice (hereinafter referred to as "the purchase notice") requiring the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to purchase the interest in the land in accordance with the provisions of this Act;

(2) On receipt of any purchase notice under sub-section (1), as soon as possible, but not later than sixty days from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat, as the case may be, through a resolution decide to acquire the land, where the land is designated for compulsory acquisition for the purpose of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat.

(3) Where the land is designated for compulsory acquisition for the purpose of any Government Department or Quasi-government Agency, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat shall forward such notice to the Government.

(4) In case the Municipal Corporation, Municipal Council, Town

Panchayat or Village Panchayat concerned decides not to acquire the land, it shall initiate variation of the plan suitably in accordance with this Act.

(5) In case the land acquisition could not be effected within a period of two years from the date of resolution to acquire the land, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act.

(6) On receipt of a purchase notice under sub-section (3), the Government shall in consultation with the Government Department or Quasi-government Agency concerned, not later than six months from the date of receipt of the purchase notice, confirm the purchase notice. In any other case, Government may require the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned to vary the plan suitably in accordance with this Act:

Provided that in case the land acquisition could not be effected within a period of two years from the date of confirmation of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall initiate variation of the plan suitably in accordance with this Act under intimation to the Government.

(7) If no order has been passed by the Government within a period of six months from the date of receipt of the purchase notice, the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, suo moto initiate variation of the plan suitably in accordance with this Act:

Provided that where variation proceedings of the Plan are initiated under this section, the Secretary of the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned

shall, in consultation with the Chief Town Planner, take suitable decision on any application for land development permit received under section

64."

9. Therefore, on an analysis of the said provision, it is clear that if any

property is just designated for acquisition for any public purposes, the owner of the

property is entitled to issue a notice to the Municipality offering the designated land

for acquisition and the Municipality is at liberty to take a decision for acquisition if

the road widening is a road belonging to the Municipality or a local body and the

Municipality has to take a decision within the time period prescribed under the said

provision. However, if the road widening is to be done, taking into account the said

Scheme by the State Government, necessarily an application is to be forwarded to

the State Government and the State Government shall take a decision in

accordance with the time period prescribed under section 67 of the Act, 2016.

Therefore in my considered opinion if and when a property is required for road

widening as per any new scheme, or any scheme protected under Section 113 (2)

ofthe Act 2016, it can only be viewed as a land designated for acquisition.

This I say, because the word "designate", is defined in the General English

dictionaries to mean ; 'to mark out so as to make known; or to show, indicate; to

appoint or nominate etc' ; and therefore, there is no requirement at all under the

said law to have issued with any notification for acquisition of the property , for

applying the provisions of Section 67 of the Act 2016, as contented by the learned

Senior Government .

In that view of the matter, the writ petition is disposed of, leaving open the

liberty of the petitioner to take appropriate action in terms of section 67 of the Act,

2016, and direct the Municipality to act accordingly if any action so, is taken by the

petitioner .

Sd/-

                                                   SHAJI P.CHALY

 smv                                                     JUDGE





                        APPENDIX OF WP(C) 18001/2016

PETITIONER EXHIBITS
P1                      COPY OF THE LAND TAX RECEIPT DTD.11.12.2015.
P2                      COPY OF THE LOCATION SKETCH OF THE LAND.
P3                      COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT
                        DTD.2.3.2015.